As we head into another wave of COVID-19 infections, employers continue to grapple with how to best handle the virus. Remote workers, impacted sales, zoom meetings, and county-by-county tiers are just a small sample of the issues that employers are currently navigating. And now, new statewide requirements must also be considered and implemented.

Some of those requirements are already in force. To address the increasing rates of COVID-19 infection in the state, Cal/OSHA emergency regulations went into effect on Dec. 2, 2020.  These regulations set forth standards for protecting workers by clarifying what employers must do to prevent workplace exposure to the virus and stop outbreaks. See CEB’s law alert.

But while employers are absorbing these new emergency regulations, they must also look ahead to Jan. 1, 2021, when AB 685 will go into effect. This bill will further enhance Cal/OSHA’s ability to enforce COVID-19 infection prevention requirements and imposes greater responsibilities on employers. Of particular interest is the new requirement that employees be promptly educated about an exposure risk in the workplace. In the new year, employers will be required to provide notice to all workers of any potential COVID-19 exposure within one business day of the employer receiving notice of that potential exposure. While this is designed to have the positive effect of motivating employers to act quickly and empowering employees to protect themselves, it may also prove to be a challenging, if not impossible, standard for employers to meet. Challenges raised by the new law include:

  • Determining when the reporting requirement has been triggered: Notice is required when employers learn that an employee has been exposed to a “qualifying individual.” A “qualifying individual” is someone who (1) has a laboratory confirmed case of COVID-19, (2) has a positive COVID-19 diagnosis from a licensed health care provider, (3) has a COVID-19 related order to isolate from a public health official, or (4) has died from COVID-19.
  • Identifying all individuals who are entitled to notice: The new law describes three different types of notice that must be provided to three different categories of employees. The law distinguishes between “all employees,” employees “who may have been exposed,” and employees who were at the worksite during the “qualifying individual’s” “infectious period.”
  • Complying with the one day requirement: Employers will have only one business day to contact and provide adequate notice to their entire workforce. And that task may be time consuming depending on how notice will be given (onsite meeting, email, text message, etc.), how a workforce is spread out (onsite versus remote, multiple offices, etc.), and whether employers can quickly identify which employees fall into which notice categories outlined in the new law.
  • Complications will arise: While the law provides employers some guidance on their notice obligations, employers will undoubtedly encounter new issues that they must navigate on the fly. For example, what privacy implications are created by the notice requirements? What steps must employers take to ensure the anonymity of the “qualified individual”? Employers should consider what additional challenges may arise as they comply with this law including protecting employee privacy, offering sick leave as appropriate, maintaining morale and productivity, and addressing any resulting workplace discrimination or harassment related to COVID-19 infections.

For more information on counseling clients regarding employment matters, see CEB’s Advising California Employers and Employees.

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